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Changes to the law around disclosure and sex

A lot of our members have been asking questions about the ‘new’ public health laws in New South Wales (NSW).

The Public Health Act 2010 (NSW), just like the previous legislation, makes it an offence for someone with a sexually transmissible infection (STI) to knowingly have sex with another without first ensuring that person is informed and has voluntarily accepted any risk. STI is not defined in the legislation so has its plain and ordinary meaning, which would include HIV. Sex refers to vaginal, anal or oral sex. The maximum penalty for breaching the provision is $5500.

A new defence

A new provision, effective from mid 2012, makes it a defence if the court is “satisfied that the defendant took reasonable precautions” to prevent transmission of the STI.

What is a “reasonable precaution”?

The defence has not yet been tested but it is assumed the Courts will be cautious about what amounts to a “reasonable precaution” if it is raised as a defence. It will most likely be interpreted to mean the correct use of condoms and lube. Although there is a body of science emerging around treatment as effective prevention, it may be difficult to prove that treatment was a “reasonable precaution” because it is a new concept for many people and may require the availability of viral load tests results from the specific time in question.

What does this mean?

The new defence does not alter the obligation for people to disclose their HIV status to their sexual partners. A person may still be charged with the offence, although if it is clear a condom was used, this will likely be considered when determining whether or not to prosecute.

On one hand, the new defence provision is an improvement for people living HIV, because it recognises the availability of effective ways to prevent HIV transmission during sex.  However, some have argued the reform has not gone far enough. Other states (like Victoria, Western Australia and South Australia) have started to take a different approach with their public health laws, by creating a general duty on all people to promote wellbeing, avoid risk and minimize harm.  This places a responsibility on both positive and negative people to use safe practices to avoid HIV transmissions.

Criminal laws remain unchanged

Importantly, the change only relates to public health offences in the Public Health Act 2010 (NSW).  The criminal law remains unchanged. There are numerous criminal provisions which can apply to someone who transmits HIV to another. Some (like grievous bodily harm) have serious consequences, like jail terms, although these have rarely been used in NSW.

This article is not intended to be legal advice and does not replace professional legal opinion. Each State has quite different public health and criminal laws that pertain to HIV – if you need more information, Pozhet recommends speaking to the HIV/AIDS Legal Service.

What do you think of the new public health laws?

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